Each time an Irish government proposes to introduce new rights for gay citizens opponents call for the right of service providers to discriminate against those citizens. They call this a “conscience clause”, which is surely a misnomer but sounds better than a “permissible discrimination” exemption.

Strangely, this is an argument which it appears must be had repeatedly. I wrote about it at the time of the Civil Partnership Bill and that post applies equally to the marriage referendum. In short: the Equal Status Act prohibits discrimination against people on the basis of sexual orientation. It was introduced fifteen years ago and it does not include a “conscience clause” (there is a limited “ethos” exemption for schools run by religious organisations). A “conscience clause” was not permitted in the Equal Status Act or the Civil Partnership Act. Why should marriage be any different?

The religious beliefs of citizens also benefit from protections and the State should not offend against those rights. But the State is entitled to insist that businesses providing services to the public respect its equality laws. The difficulty with providing an exemption from equality legislation on the basis of religious beliefs is that it would allow the law of the State, applicable to all, to be subverted by the private beliefs and opinions of self-defining groups. Indeed, if a “conscience clause” were introduced, there is no reason why it shouldn’t protect political beliefs as well as religious beliefs.

Today William Binchy is concerned that gay couples might sue a church for refusing to perform a same sex religious marriage ceremony. This is a strange concern to have. I have yet to hear of divorced people suing churches for refusing to perform a marriage, for example, but the same principles apply. Even if Mr Binchy’s fear was realised, it would mean that civil marriages would have to be registered separately from religious ceremonies. This would not require churches to perform same sex marriages.

It is striking that calls for a “conscience clause” only seem to arise in the case of gay rights. One does not hear the Iona Institute and other groups opposing the marriage referendum advocating on behalf of bakers and stationers forced to provide services to single mothers, divorcees or atheists. If one were to introduce a “conscience clause” it would have to apply to all categories of persons who benefit from protection under the Equal Status Acts and would open the gates to a wide and unpredictable range of subjectively permissible discrimination that would entirely undermine the purpose of equality legislation. Any conscience clause limited to gay rights would, in itself, constitute discrimination.

Both announcements are the responsibility of the Department of Justice where the Minister, Alan Shatter TD (FG; Dublin South) has a long-standing interest arising out of his significant, high-profile career as a family law solicitor. He, literally, wrote the book and has been calling for reform of many aspects of family law for decades. The Bill is not a comprehensive reform package, but does address some key issues.

The current situation in cases involving children where the core concern of the courts is their welfare will be updated to emphasise their “best interests”, as will be required by the new article 42A.4.1° of the Constitution once signed into law by the President (assuming that the Supreme Court appeal challenging the referendum result is unsuccessful). The wording of the Bill itself is not yet available, but the proposal to include legislative guidance on the best interests principle is particularly welcome. “Best interests” will

includ[e] the benefit of meaningful relationship with both parents, ascertainable views of the child, needs of the child, history of upbringing and care, religious, spiritual and linguistic needs, harm suffered or which the child is at risk of suffering, custody arrangements, capacity of applicants etc. [as well as considering] any family/domestic violence and its impact

Existing guardianship legislation provides little detail on the nature, obligations and powers of guardians and this will also be changed. In addition, the range of people who can become guardians will be expanded to provide greater opportunity for non-parents to obtain guardianship. This will particularly benefit non-parents who reside with a child as a spouse, civil partner or cohabitant of that child’s parent. It also envisages guardianship for non-parents who have cared for children where their parents or guardians were unwilling or unable to do so.

While principles concerning the voice of the child in family are established in practice the Bill will clarify those principles, for example by requiring that a child over 12 must be consulted in relation to guardianship, custody and access applications.

The Bill includes limited provisions to deal with assisted reproduction and surrogacy. While assisted reproduction will not be fully regulated, the Bill will specify who the legal parents of a child are in a number of possible scenarios. The Bill will also prohibit commercial surrogacy arrangements.

There have been reforms to the law on children, cohabitants and civil partners in recent years but there has been little reform of the key questions of parentage, guardianship, custody and access. Part of the reason, it could be surmised, is an unwillingness to tackle such issues when a variety of alternative or new family arrangements have arisen but were considered too politically controversial to address, for whatever reason.

Between 2008 and 2011 very little happened that was not dictated by economic considerations and it is refreshing to see that, while those considerations still dominate, the current Government has evidently decided to tackle social issues as well.

More detail on the proposals should be available by the end of 2013 with the Bill being published and (it is intended) enacted in 2014. The Government has created a long run-up to the same-sex marriage referendum, which will allow significant time for debate, though the proposed legislation is unlikely to be available before 2015.

In a different era, conscientious objectors were given alternative means to perform their civil duties.

Daly argues that the dismissal of the complaints from individuals like Ronan Mullen was summary in nature and scant on substantive arguments. He says that it is arguable that the Constitution offers more generous protection to employees objecting to the performance of duties on religious grounds than human rights law does.

He makes the following point; crucial to the issue but which leaves quite a conundrum for the law and for society itself.

Like most, I find the sentiment behind the claim [to an exemption on religious grounds] odious and without any moral value. But a part of the point of religious freedom is that we do not adjudicate on the content of religious belief itself, only on the manner of its expression.

How can this be reconciled? Daly suggests there is a more coherent argument against a discrimination clause: one based on the extent to which one’s own right to religious freedom extends, rather than one which looks into the moral content of a belief.

The law cannot impose any burden or disability on the basis of our religious affiliation or beliefs, but this does not mean that the requirement to perform public duties contrary to religious beliefs represents a loss to religious liberty, where these requirements have no bearing on religion per se. We cannot extend the concept of religious freedom broadly that it seeks to remove all advantages that result from the performance of religious duty, or accede to claims to have the social and political world arranged so as to harmonise with the requirements of those religions best positions to achieve public status and recognition. We cannot force persons to sell alcohol, but their religious freedom could not compensate them for any lost opportunities they might suffer on this count.

I had made the point that, in so far as Senator Mullen etal were concerned, the discrimination clause argument was lost when the Equal Status Act 2000 was passed by the Oireachtas. However, the civil partnership debates have shown that the issue has not gone away and, in future debates, Daly’s reasoning is likely to provide a more solid (and less heated) basis on which arguments from objectors could be countered.

The Civil Partnership Bill 2009, one of the most significant pieces of Irish law in the past few decades, has passed through the Dáil. Therefore, it is destined to become law but will first have to pass the Seanad and receive the Presidential signature. It will probably not take full effect until 2011, when the tax and social welfare laws have been amended in line with it and preparations are made to formalise civil partnerships.

I’ve written before about Part 15 of the Bill, which deals with cohabitants. This has received less attention, understandably, than the civil partnership elements of the law but Part 15 applies to all relationships, whether homosexual or heterosexual in nature. Amendments have been made to Part 15 so that cohabitants will have to live together for 5 years before their rights arise (2 years if dependent children are involved) rather than the original 3 year qualification period proposed in the first draft of the Bill.

Professor John Mee has made a detailed critique of the legislation, primarily pointing out drafting errors and ambiguities in the Bill. He also made general observations that Part 15 might do more harm than good. These points do not appear to have been addressed. Nor does the Minister appear to have amended the title to highlight the cohabitant elements, as was expected.Update: via Maman Poulet I learn that this has now happened and the legislation bears this tongue-twister of a name: the Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009.

Incidentally, there have been some suggestions (mostly from the odd Fianna Fáil backbencher) that the legislation is a Green Party measure, though Fianna Fáil’s manifesto for the 2007 general election (which predated coalition talks with the Green Party) contained a commitment to introduce the legislation.

Breda O’Brien again makes the argument today, in a somewhat convoluted fashion, that some citizens of the Republic of Ireland ought be permitted to discriminate against others.

In fact, she goes further and suggests that Irish society will not be genuinely tolerant or pluralist unless a self-selecting category of citizen is allowed discriminate against another, naturally arising category. Leaving aside the specific debate about whether or not civil partnerships should be recognised by the State, such a proposal is incompatible with existing equality law and, if accepted, requires a fundamental reshaping of that law.

The Equal Status Acts 2000 and 2004 prohibit discrimination on the grounds of sexual orientation (section 3(2)(d)). The Civil Partnership Bill 2009 provides for the registration of civil partnerships between same-sex couples. The Bill, if passed, will also amend the Equal Status Acts to provide that any reference to “marital status” be replaced with “civil status”. Accordingly, where it is currently unlawful to discriminate against someone on the basis of whether or not they are married, in future it will also be unlawful to discriminate against someone on the basis of whether or not they are or were party to a civil partnership.

Some are unhappy with this consequence and believe that, if a service provider or public servant is of the opinion that a family should consist only of heterosexuals, they should be permitted to refuse service to someone who wishes to have a civil partnership registered. They refer to this as a “freedom of conscience” or “freedom of religion” amendment, often shortened to the “conscience amendment”.

The more accurate term for such an amendment is a “permitted discrimination amendment”.

Opponents of the Civil Partnership Bill are, of course, entitled to make their views known and to lobby for amendments, but they should not misrepresent the nature of the amendment they seek. Neither should the media collaborate in such misrepresentation by repeating this misnomer.

To accept such an amendment would be to roll back the existing law on equality and not, as is suggested, to advance the case of religious equality. The battle currently being waged by Ms. O’Brien, the Iona Institute, Renew and the National Men’s Council of Ireland was lost when the Equal Status Act 2000 became law.

If one is prepared to accept the logic of the permitted discrimination amendment in the case of personal belief and homosexuality, there appears no reason why that logic should not be accepted in the case of the other eight grounds of discrimination, which are: